Stop Bombing Libya

Since Saturday night, the United States, France, and Britain have beenbombing Libya with cruise missiles, B-2 stealth bombers, F-16 and F-15fighter jets, and Harrier attack jets. There is no reliable estimateof the number of civilians killed. The U.S. has taken the lead in thepunishing bombing campaign to carry out United Nations SecurityCouncil Resolution 1973.

The resolution authorizes UN Member States “to take all necessarymeasures . . . to protect civilians and civilian populated areas underthreat of attack in the Libyan Arab Jamahiriya, including Benghazi,while excluding a foreign occupation force of any form on any part ofLibyan territory.” The military action taken exceeds the bounds of the“all necessary measures” authorization.

“All necessary measures” should first have been peaceful measures tosettle the conflict. But peaceful means were not exhausted beforeObama began bombing Libya. A high level international team –consisting of representatives from the Arab League, the Organizationof African Unity, and the UN Secretary General – should have beendispatched to Tripoli to attempt to negotiate a real cease-fire, andset up a mechanism for elections and for protecting civilians.

There is no doubt that Muammar Qaddafi has been brutally repressingLibyans in order to maintain his power. But the purpose of the UnitedNations is to maintain international peace and security. Theburgeoning conflict in Libya is a civil war, which arguably does notconstitute a threat to international peace and security.

The UN Charter commands that all Members settle their internationaldisputes by peaceful means, to maintain international peace, security,and justice. Members must also refrain from the threat or use of forceagainst the territorial integrity or political independence of anystate or in any manner inconsistent with the Purposes of the UnitedNations.

Only when a State acts in self-defense, in response to an armed attackby one country against another, can it militarily attack another Stateunder the UN Charter. The need for self-defense must be overwhelming,leaving no choice of means, and no moment for deliberation. Libya hasnot attacked another country. The United States, France and Britainare not acting in self-defense. Humanitarian concerns do notconstitute self-defense.

The UN Charter does not permit the use of military force forhumanitarian interventions. But the UN General Assembly embraced anorm of “Responsibility to Protect” in the Outcome Document of the2005 World Summit. Paragraph 138 of that document says each individualState has the responsibility to protect its populations from genocide,war crimes, ethnic cleansing, and crimes against humanity. Paragraph139 adds that the international community, through the United Nations,also has “the responsibility to use appropriate diplomatic,humanitarian and other peaceful means, in accordance with Chapters VIand VIII of the Charter, to help protect populations from genocide,war crimes, ethnic cleansing and crimes against humanity.”

Chapter VI of the Charter requires parties to a dispute likely toendanger the maintenance of international peace and security to “firstof all, seek a solution by negotiation, enquiry, mediation,conciliation, arbitration, judicial settlement, resort to regionalagencies or arrangements, or other peaceful means of their ownchoice.” Chapter VIII governs “regional arrangements,” such as NATO,the Arab League, and the Organization of African Unity. The chapterspecifies that regional arrangements “shall make every effort toachieve pacific settlement of local disputes through such regionalarrangements . . .”

It is only when peaceful means have been tried and proved inadequatethat the Security Council can authorize action under Chapter VII ofthe Charter. That action includes boycotts, embargoes, severance ofdiplomatic relations, and even blockades or operations by air, sea orland.

The “responsibility to protect” norm grew out of frustration with thefailure to take action to prevent the genocide in Rwanda, where a fewhundred troops could have saved myriad lives. But the norm was notimplemented to stop Israel from bombing Gaza in late 2008 and early2009, which resulted in a loss of 1,400 Palestinians, mostlycivilians. Nor is it being used to stop the killing of civilians bythe United States in Afghanistan and Pakistan.

There is also hypocrisy inherent in the U.S. bombing of Libya toenforce international law. The Obama administration has thumbed itsnose at its international obligations by refusing to investigateofficials of the Bush administration for war crimes for its tortureregime. Both the Convention Against Torture and the Geneva Conventionscompel Member States to bring people to justice who violate theircommands.

The United States is ostensibly bombing Libya for humanitarianreasons. But Obama refuses to condemn the repression and governmentkillings of protestors in Bahrain using U.S.-made tanks and weaponrybecause that is where the U.S. Fifth Fleet is stationed. And Yemen, aclose U.S. ally, kills and wounds protestors while Obama watchessilently.

Regime change is not authorized by the resolution. Yet U.S. bomberstargeted the Qaddafi compound and Obama said at a news conference inSantiago that it is “U.S. policy that Qaddafi needs to go.” Theresolution specifically forbids a “foreign occupation force.” But itis unlikely that the United States, France and Britain will bomb Libyaand leave. Don’t be surprised to hear there are Western forces on theground in Libya to “train” or “assist” the rebels there.

Defense Secretary Robert Gates pegged it when he said that a “no-flyzone” over Libya would be an “act of war.” Although the Arab Leaguereportedly favored a no-fly zone, Amr Moussa, Secretary General of theArab League, said that “what is happening in Libya differs from theaim of imposing a no-fly zone.” He added, “What we want is theprotection of civilians and not the shelling of more civilians.” Heplans to call a new meeting of the league to reconsider its supportfor a no-fly zone.

The military action in Libya sets a dangerous precedent of attackingcountries where the leadership does not favor the pro-U.S. orpro-European Union countries. What will prevent the United States fromstage-managing some protests, magnifying them in the corporate mediaas mass actions, and then bombing or attacking Venezuela, Cuba, Iran,or North Korea? During the Bush administration, Washington leveledbaseless allegations to justify an illegal invasion of Iraq.

Moreover, Obama took military action without consulting Congress, theonly body with the Constitutional power to declare war. It is notclear what our mission is there or when it will end. Congress – andindeed, the American people – should debate what we are doing inLibya. We must not support a third expensive and illegal war. There isa crying need for that money right here at home. And we should refuseto be complicit in the killing of more civilians in a conflict inwhich we don’t belong.

Marjorie Cohn is a professor of law at Thomas Jefferson School of Law,past president of the National Lawyers Guild, and deputy secretarygeneral of the International Association of Democratic Lawyers. Herlatest book is “The United States and Torture: Interrogation,Incarceration, and Abuse” (NYU Press).